Charlevoix, Michigan – The Committee to Ban Fracking in Michigan, a statewide ballot initiative campaign (www.letsbanfracking.org), filed on Wednesday for leave in the Michigan Supreme Court in its constitutional challenge of the statute limiting signature-gathering to 180 days. The lower courts ruled the Committee’s lawsuit was not yet “ripe” because it had not yet filed signatures with the Secretary of State and that there was no “actual controversy.” The Committee’s leave to appeal describes the reasons and court decisions that show that the case is ripe now, that the “actual controversy” is about the signatures already in-hand that are over 180-days old, and that the Courts previously have always considered claims for declaratory relief before signatures are filed.

Last year, the Committee sued election officials saying the law regarding the signature-gathering time period is unconstitutional for statutory initiatives under Article 2 Section 9 of the Michigan state constitution like the ban-fracking measure. The constitution does not have any time restrictions, nor does that section allow the Legislature to restrict the people’s right to statutory initiative. In fact, the Attorney General struck down the law as unconstitutional in 1974.

A week after Committee to Ban Fracking sued, Governor Snyder signed an amendment to the old version making it even more restrictive. The new version is absolute in allowing no signature over 180 days old to be counted, even if the voter’s signature is valid.

One question presented to the Supreme Court is whether a challenge to the constitutionality of the law gives rise to an “actual controversy” when the older signatures already collected will be subject to absolute rejection, if the committee is compelled to file the signatures before obtaining an order from the court stating the law is unconstitutional.

The Committee cites the Court of Appeals’ erroneous decision that the Committee can only satisfy the “actual controversy” test after having “collected the number of required petition signatures, albeit during a time-frame outside the 180-day rule, filed those petitions at least 160 days before the election, had those petitions rejected by defendants as insufficient, and then had their ballot proposal denied.” [Emphasis added].

Among the Committee’s arguments is that the court is misconstruing the declaratory judgment rule’s “actual controversy” standard to bar pre-enforcement of challenges to the validity of state statutes, and that such a fundamental conflict necessitates the higher court’s intervention.

The Committee also argues that the Court of Appeals erroneously failed to construe MCL 168.472a as an immediately applicable regulation on the petition circulation process. Any committee wishing to collect signatures for a ballot initiative proposal has the right to seek declaratory relief no matter how many signatures have been gathered and indeed if any signatures have been collected yet at all.

“The court precedents are all on our side,” said campaign director LuAnne Kozma, of Charlevoix. “The Supreme Court has taken cases before which ask for declaratory relief to resolve claims brought with the same factual context. If we did as the Courts say we must, collect all the signatures now, submit them and then wait for the Board of Canvassers and Director of Elections to reject the old signatures, then our chance for declaratory judgment will have evaporated. That would unnecessarily waste a lot of our committee volunteers’ time and money circulating and verifying petitions, and the signatures of hundreds of thousands of people who have signed the petition who have the right to see this put on the ballot. And that’s just completely unfair.”

The courts have put the Committee to Ban Fracking in a double bind: collecting signatures on their current petition and going against the 180-day law it is challenging, not knowing if the signatures will count in the end, while not being able to start a brand new petition because the people who have already signed legally cannot sign twice.

At the time of the June filing deadline for submitting signatures for putting a proposed law on the ballot in the November 2016 election, the Committee had over 207,000 signatures. The required number is 252,523. The Committee now has over 222,0000, continues collecting signatures and plans to file them for the next statewide election in 2018.

For more background on the history of initiative law and MCL 168.472a, the law prohibiting signature gathering past 180 days, which was created when a ballot initiative in the 1970s was seeking to limit legislators’ pay and pension increases, see the Committee’s press release from October 13, 2016: